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2012 DIGILAW 86 (CHH)

FIRTU RAM v. STATE OF C. G.

2012-03-15

MANINDRA MOHAN SHRIVASTAVA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon'ble Shri Manindra Mohan Shrivastava, J.:- 1. This appeal is directed against the judgment of conviction and order of sentence dated 30.8.2007 passed by learned 1st Additional Sessions Judge, Balodabazar in S.T. No.318/2006, whereby and whereunder, the learned trial Court, after holding the appellant guilty of commission of offence under Section 302 of the IPC, has sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/- and in default of payment of fine, to undergo R.I. for 2 months. 2. Prosecution case, in brief, is that on the date of incident, Sita Ram (P.W.1), heard voice of his aunt Dokari Bai, upon which, he went to her house, where he witnessed that the appellant was assaulting Dokari Bai by a stick. Appellant threatened Sita Ram. Whereafter, Sita Ram went back to inform the daughters of the deceased and villagers, who came on the spot and found Dokari Bai dead at the spot and injury on her head. Further case of the prosecution is that the appellant assaulted and murdered his wife by crushing her head with a piece of stone. Dehati merg intimation (Ex.P-10) and a formal merg report (Ex.P-11) were recorded and inquest over the body was prepared in the presence of villagers. First Information Report (Ex.P-16) was lodged in the Police Station-Bilaigarh at the instance of Sita Ram (P.W.1). In the FIR, it was stated that on 9.6.2006, when Sita Ram went to the house of the deceased on her cry for help, he found his uncle-Firtu beating his aunt - Dokari Bai and when he attempted to rescue her, the appellant threatened him and chased him, due to which, he ran away and, thereafter, villagers approached the place of incident. It has been stated that a child was also found at home, who was weeping. According to FIR, the appellant caused death of his wife by assaulting with stick and stone. The dead body was sent for postmortem. In the postmortem report, it was opined that cause of death is shock and hemorrhage due to injury over the head and face. Bony injury of thumb was also found. The doctor opined that the death was homicidal in nature. 3. After arrest of the appellant, memorandum under Section 27 of the Evidence Act was recorded and recovery of stick and stone was made. Bony injury of thumb was also found. The doctor opined that the death was homicidal in nature. 3. After arrest of the appellant, memorandum under Section 27 of the Evidence Act was recorded and recovery of stick and stone was made. After holding usual investigation, recording statement under Section 161 of Cr.P.C. of the witnesses, charge sheet was filed before the Judicial Magistrate 1st Class, Balodabazar, which was committed to the Court of Sessions, Balodabazar. The same was transferred for trial to the 1st Additional Sessions Judge, Balodabazar, leading to registration of Sessions Trial No.318/06. 4. The learned trial Court framed charges for alleged commission of offence under Section 302 of the IPC against the appellant. The appellant abjured guilt and prayed for trial. 5. In order to prove its case, the prosecution examined as may as 13 prosecution witnesses. The appellant was examined under Section 313 of the Cr.P.C., in which, he denied all the circumstances and evidence appearing against him and stated that when he came back from the field, he found his wife lying dead. The appellant did not examine any defence witness. 6. The learned trial Court, mainly relying upon the testimony of Sita Ram (P.W.1) and Anand Ram (P.W.6), the son of the deceased, concluded that the allegation of commission of murder is proved against the appellant and convicted the appellant. 7. Learned, counsel for the appellant argued, in extenso, that the conviction of the appellant is unsustainable in law as the prosecution has failed to prove the guilt beyond reasonable doubt. It has been contended that the prosecution witnesses, particularly Sita Ram (P.W.1) and Anand Ram (P.W.6), on whose testimony heavy reliance has been placed, have not supported the case of the prosecution and in their testimony, it has been clearly deposed that they had not seen the appellant assaulting the deceased. According to learned counsel for the appellant, the only evidence, which hats come on record, is that the appellant was seen in the kitchen garden (badi) and was holding a small stick in his hand and Dokari Bai was bleeding. He has specifically stated that he does not know how Dokari Bai received injury. According to learned counsel for the appellant, the only evidence, which hats come on record, is that the appellant was seen in the kitchen garden (badi) and was holding a small stick in his hand and Dokari Bai was bleeding. He has specifically stated that he does not know how Dokari Bai received injury. Learned counsel for the appellant submitted that Anand Ram (P.W.6), who is the son of deceased, has also stated that he has not seen anyone assaulting his mother and when he came back from nearby nallah, he found his mother lying dead. He further contended that aforesaid evidence of the prosecution does not conclusively lead to the guilt of the appellant, because they have not seen as to who assaulted Dokari Bai. According to him, except the aforesaid evidence that the appellant was found near the body of the deceased, there is no other clinching and incriminating evidence connecting the appellant with the commission of offence, particularly when the learned trial Court itself has held recovery of weapon not proved and there being no other circumstantial evidence implicating the appellant in the alleged commission of offence. 8. On the other hand, learned counsel for the State/respondent has supported the impugned judgment of conviction and order of sentence. He submitted that conviction of the appellant is based on clinching evidence of the appellant found at the spot along with stick and deceased lying there bleeding. He further submitted that the conduct of the appellant in threatening Sita Ram (P.W.1) to leave the place, proves his guilty mind. He further submitted that at the instance of the appellant, stick and stone, weapon used for commission of offence, were recovered, which corroborate the case of the prosecution and prove guilt beyond reasonable doubt. 9. We have given our anxious consideration to the submissions made by learned counsel for the parties and perused the records. 10. The conviction of the appellant is substantially based on the testimony of Sita Ram (P.W.1) and Anand Ram (P.W.6), son of the deceased and appellant. As far as recovery of stick and piece of stone on the basis of memorandum (Ex.P-5) of the appellant is concerned, the trial Court has held that recovery on the basis of memorandum given by the appellant has not been proved. As far as recovery of stick and piece of stone on the basis of memorandum (Ex.P-5) of the appellant is concerned, the trial Court has held that recovery on the basis of memorandum given by the appellant has not been proved. Witness of seizure- Sheetal Das (P.W.10), in his cross-examination, has stated that the appellant did not take out stick and stone from house and at the time of recording memorandum, stick and stone were already lying there. Otherwise also, stick and stone are common articles ordinarily found in the house of a villager. Though during investigation, the police seized blood stained soil, stick and stone, which were sent for chemical examination to the Forensic Science Laboratory (F.S.L.) Raipur vide memorandum dated 7.7.2006 (Ex.P-17), the prosecution failed to produce any report of the F.S.L. to establish that the stick or the stone was stained with human blood, much less the origin of the blood. 11. In the above circumstances, it has therefore to be examined as to whether the conviction of the appellant can be sustained on the basis of evidence of Sita Ram (P.W.1) and Anand Ram (P.W.6). 12. In the FIR (Ex.P-16) lodged at the instance of Sita Ram (P.W.1), it has been stated that when Sita Ram came to the house of the deceased upon hearing her cry for help, he saw the appellant assaulting his wife by a stick. When he attempted to rescue her, the appellant chased him to assault, due to which, he ran away and the crowd gathered on the spot. It has also been stated in the FIR that one child was at home who was crying. He, however, in his testimony before the Court has not supported the case of the prosecution or the version of the FIR. All that has been stated by Sita Ram (P.W.1) is that when he came to the house of the deceased after hearing her cry for help, he saw that the appellant was standing and Dokari Bai was bleeding having a head injury and when the appellant asked Sita Ram how he has come, he ran away from the spot. He has further stated very explicitly that he does not know as o how Dokari Bai received injury on her head. The said witness has stated that he did not see the appellant assaulting deceased-Dokari Bai. He has further stated very explicitly that he does not know as o how Dokari Bai received injury on her head. The said witness has stated that he did not see the appellant assaulting deceased-Dokari Bai. In his cross-examination, he stated that the house of the appellant is situated in the center of the village and the relation between the appellant and his wife & children were cordial. The entire evidence of Sita Ram (P.W.1) even if accepted, only proves that when Sita Ram reached the house of the deceased, he found the appellant standing near the body of bleeding Dokari Bai and nothing more. The place of incident, according to the case of the prosecution, is badi, which is open space and it is not the case of the prosecution that the appellant was found inside the house or in a closet corner of the house where no other person would have ordinarily reached. According to the case of the prosecution, the time of incident is 10:30 a.m., which is broad day light. Spot map (Ex.P-9), proved by Patwari- Yogesh Sahu (P.W.-12), also shows that the place where the incident is alleged to have happened is an open courtyard accessible to all. 13. As far as Anand Rain (P.W.6), son of the appellant and the deceased is concerned, he is a child witness. In paragraph-2 of his cross-examination, he has stated that he had gone towards nallah, which is at some distance from his house and when he came back to his house, he saw his mother lying dead in badi (courtyard). He has stated that he has not seen anyone assaulting his mother. 14. Thus, the evidence led by the prosecution only goes to prove that the appellant was standing in the badi, near the body of the deceased and was holding a stick in his hand. There is no evidence led by the prosecution to prove that the stick which the appellant was holding in his hand, was blood stained, containing the blood of the same origin as that of the deceased. The place of incident is an open courtyard, which is accessible to all and is not an enclosed premise. The time of incident is broad day light and the house of the appellant is situated in the center of the village. The place of incident is an open courtyard, which is accessible to all and is not an enclosed premise. The time of incident is broad day light and the house of the appellant is situated in the center of the village. Both the prosecution witnesses i.e. Sita Ram (P.W.1) and Anand Ram (P.W.6) have stated that they have not seen anyone assaulting deceased-Dokari Bai or appellant assaulting the deceased. The aforesaid material brought about by the prosecution, at the most, may lead to grave suspicion, but cannot take thy place of proof. 15. In the case of Narasappa Vs. State of Kamataka, (2007) 10 SCC 770, the Supreme Court has emphasized that suspicion however strong to show complicity of the accused with the crime, howsoever strong it may be, cannot take the place of proof. In the present case, there is no other clinching evidence to connect the appellant with the crime. 16. Other prosecution witnesses Bisram (P.W.2) has stated that he came to know from other person that the appellant murdered his wife-Dokari Bai However, in his cross-examination, he says that the relation between the appellant and his wife were cordial. Lambodar (P.W.3) has been declared hostile and has not supported the case of the prosecution. Bhagat Ram Kewat (P.W.4) and Smt. Kumari Bai (P.W.5) have also been declared hostile. In his examination under Section 313 of the Cr.P.C., the appellant has stated that he has not committed offence and when he came back from the field, he saw his wife-Dokari Bai lying dead. 17. In view of the aforesaid discussions, we are of the considered opinion that the prosecution has failed to prove the guilt of the appellant and the learned trial Court has erred in law in convicting the appellant without there being any evidence to prove that the appellant assaulted his wife causing her death. 18. In the result, the impugned judgment of conviction and order of sentence dated 30.8.2007 passed by learned 1st Additional Sessions Judge, Balodabazar passed in S.T. No.318/06 is not sustainable in law and the same is hereby set aside. 19. The appeal is accordingly allowed and the appellant is acquitted of the charges. He be set free forthwith. Appeal Allowed.